Volume 58 — Wisconsin Reports

This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendants.

On the 5th of March, 1873, a petition for the vacation of a certain street in the city of-Milwaukee was presented to the board of supervisors of Milwaukee county and was referred to the committee on highways. Notice that such application would be made on the 25th of March, 1873, had been published in a newspaper in said county on January 21, and had been posted in two public places therein on January 24, 1873.

The substance of the complaint is stated, in the opinion^ The defendant demurred thereto on the ground that several causes of action were improperly united, and also to each cause of action on the ground of insufficiency. Erom an order sustaining the demurrer the plaintiff appealed.

The case is thus stated by Mr. Justice Cassoday: “ On July 29, 1875, the plaintiff, Lucinda, was married to the defendant, Daniel. On January 7, 1877, Lucinda brought suit for divorce, alleging cruel and inhuman treatment, and failure to support. Daniel counterclaimed, alleging adultery after the marriage and also the fraudulent concealment of unchastity prior to the marriage. On.

The case is thus stated by Mr. Justice Oassoday : “ This is an action to foreclose a mortgage executed by the defendants to the plaintiff, February 14,1816, purporting to secure the payment of $5,000, according to the terms of certain promissory notes executed by Allen O. Bates.

Action to enforce a lien upon buildings of the defendant for the price of lightning rods alleged to have been placed thereon by the plaintifE in pursuance of a written contract between the parties. The answer denied that the parties ■entered into such contract or that the defendant in pursuance of any contract erected any lightning rods upon the •defendant’s buildings. Other facts are stated in the opinion.

Action to recover damages for personal injuries alleged to-have been caused by the negligence of the defendant company. The railway of the defendant from Milwaukee- passes-north through the west portion of the city of Port Washington, crossing a highway leading into the city from the- west. The depot of the company in Port Washington is located on the east side of the railway, a short distance north, of the-highway, and the depot platform extends south to the highway.

<p>License Laws. (1) Beer is intoxicating. (3) Form of sentence.</p> <p>Instructions to Jury. (SJ Manner or emphasis not assignable as error.</p> <p>1. Courts will take judicial notice that “ beer” is a malt and an intoxicating liquor.</p> <p>2. The manner or emphasis or form of expression of a judge which cannot reasonably be interpreted to express a wrong opinion as to the law or facts, or to express an opinion of a fact which should be left wholly to the jury, cannot be assigned as error.</p> <p>3. A sentence for selling liquor without a license providing that in default of payment of the fine and costs the defendant stand committed not to exceed sixty days, is valid. Sec. 4633, R. S.</p>

The case is thus stated by Mr. Justice Cassoday: “In August, 1882, the plaintiff in error, Hepler, was arrested upon the complaint of L. Woodard,, the chairman of the board of supervisors of the town of Wyocena, and brought before a justice of the peace in the city of Portage.

APPEALS from the Circuit Court for Hacine County. The complaint alleges that prior to and during the year 1867 Titus G. Fish and Abner C. Eish were partners in the business of manufacturing wagons at Racine under the firm name of Fish Brothers; that in December of that year said firm became embarrassed and were indebted to numerous persons, including the plaintiff, in about the sum of $100,000, which they were unable to meet; that thereupon an agreement was entered into…

The defendant, Hartley Clifford, was convicted of murder in the first degree in the circuit court for Rock county. A hill of exceptions was settled and signed by the judge and* With the record proper, was transmitted to this court. The cause was placed upon the calendar of the January term, 1883.

A writ of error having issued out of this court, May 23, 1883, to review the proceedings in the case of The State v. Clifford [see ante, p. 113], the chief justice ordered a stay of execution of the sentence until May 31, 1883. On that day an application to the chief justice for a further stay of execution was denied, and the following opinion was filed:

The cause was before this court on former appeals, and is reported in 26 Wis., 466, and 45 Wis., 138.

Ejectment. In August, 1855, the plaintiff David L. Mills agreed to donate, and executed a bond or contract to convey, the land in question to the defendant corporation. This bond appears to have been lost. On September 14, 1859, both plaintiffs, in pursuance of the contract, executed and delivered to the corporation an unconditional deed of the premises.

Beplevin. Most of the material facts are stated in the •opinion. The portion of the charge to the jury therein referred to was as follows: “The question then is, Were these horses in the streets at large ... by the permission or by the negligence of the plaintiff? They being confessedly 4he property of the plaintiff, he, of course, was bound to •exercise some care over them to prevent them from running •at large.

APPEALS from the Circuit Court for Racine County. The case is stated in the opinion. Exhibit B, therein referred to, was as follows: “ Racine, Wis., Aug. 12, 1867. “ Received of Isaac M. Hill his notes, Aug. 12, 1867, for $8,500 .... secured by a mortgage on the barque ‘ Green Bay,’ which notes and mortgage I am to hold as collateral security for any indebtedness of the said Hill either to me or to Caroline B. Durand. “ Wm. Cowles, “ By H 8.

This action was brought upon the official bond of John C. Pierron, late treasurer of the plaintiff city. The defendants are the sureties in such bond. The summons was served upon one Thomas Mason, also one of the sureties, who died before the complaint was filed. The defendants Moors, Hughes, Lallier, Bartlett, and Gaynor answered, and are the appellants here. The remaining defendant, Baker, did not answer, and does not join in the appeal.

This is an action to recover the amount of certain moneys, alleged to have been collected by the defendants while doing business as copartners and lawyers, claim collectors, loan and real estate agents, and makers of abstracts, at Kenosha, under the firm name of Brande & Thiers, on certain securities alleged to have been left by the plaintiff with them for collection and remittance or reinvestment, and which moneys, as alleged, the firm collected and held for the use of the…

The case is stated in the opinion. The final order of the county court distributing and assigning the estate of Abram Allen, deceased, in accordance with his last will and testament, was made before the commencement of the action. They contended, inter alia, that the question of adverse possession in this case was one of intention, and should have been submitted to the jury. McPherson v. Peatherstone, 37 Wis., 632; Taylor v. Horde, 1 Burr., 60; Hallv.

<p> (1J Presumption as to jurisdiction of superior courts. (2) Foreclosure of mortgage: judgment for deficiency after death of mortgagor. </p> <p>1.. Reasonable presumptions are always made in favor of the judgments of superior courts, and the presumption of jurisdiction is indulged until something in the record shows a want of it.</p> <p>$. A judgment of foreclosure which, without proof that they have incurred such a responsibility, makes the heirs and devisees of the deceased mortgagor personally liable for any deficiency to the extent of the property of such mortgagor which shall have descended or been devised to them, and which makes such deficiency a lien upon the property of such deceased mortgagor, is erroneous and will be reversed on an appeal by the personal representatives of the mortgagor. The deficiency, if found, should be certified to the probate co.urt to be paid with the other debts of the deceased.</p>

The case is thus stated by Mr. Justice Taylou : “This action was brought to recover for goods sold and delivered between September 10, 1879, and November 25 of the same year. The action was commenced by the service-of a summons, Eebruary 9, 1881, and the defendant appeared by his attorney, and on February 28,1881, demanded that a copy of the complaint be served upon him. March 10th a copy of the complaint was served upon the defendant’s attorney.

Action to recover damages for the refusal of the defendant to deliver certain goods for which he had given a receipt to the plaintiff as sheriff. The facts are sufficiently stated in the opinion. From a judgment entered upon the special verdict, in favor of the plaintiff, the defendant appealed. 1. A receiptor for property is not liable to the officer for its non-delivery on demand, unless the officer is liable to some one for his failure to hold or sell it on his process.

'On June 23, 1882, the defendant city, in pursuance of an authority given in ch. 31, Laws of 1882, entei’ed into a contract,-containing the provisions, restrictions, and conditions 'therein required, with the defendant The Elgin Tubular Iron Tower Company, for the erection and construction of five towers, for which the city agreed to pay $5,861.07, and hpon which towers were to be placed what were known as the Brush electric lights.

Ejectment. The cause was before this court on a former appeal, and is reported in 53 Wis., 395. On the second trial, upon the same pleadings, when the case was called, the defendant demanded a separate trial by the court of her counterclaim, which was granted against the objection of plaintiff that the facts alleged as a counterclaim did not constitute a cause of action.

The plaintiff brought this action against the defendant before a justice of the peace, and recovered judgment. The defendant thereupon sued out a writ of certiorari from the circuit court to obtain a review by that court of the proceedings and judgment. The ground for a reversal of the judgment set forth in the petition or affidavit for the writ is that there was an' adjournment of the cause and the justice failed to state in his docket the place to which it was adjourned.

<p> Verdict. </p> <p>At five o’clock P. M. on Saturday the jury retired. At 10:30 o’clock the judge was sent for by them and immediately went to their room and asked if they had agreed upon their verdict. Some one in the room answered that they had. The judge then asked what their verdict was, and one of the jury, in the presence of all, answered that a member of the jury would'write it out. Immediately af-terwards a paper was written and handed to the judge by one of the jury, as follows: “We, the jury, find no cause of action. C. H. Upham, Foreman.” The judge did not read the paper aloud to the jury; nor was it read by them; nor were they asked if it was their verdict; nor was the jury called to ascertain if they were all present; nor was the clerk of the court or either of the parties or their attorneys present; nor were they notified to be present; nor had either of the parties waived his right to be present and to have the jury polled. The judge immediately handed the paper to the officer in charge of the jury and directed him to seal it up and hand it to the clerk, and told the jury that they were discharged. The officer sealed up the paper and on Monday morning handed it to the clerk. On the opening of court on that day, and before the clerk had recorded the paper, the plaintiff objected to the receipt and entry thereof as a verdict, and demanded to have the jury polled, which was refused on the ground that the jury had been discharged on the Saturday previous. The-paper was then entered of record as the verdict and a motion to. set it aside was denied. Held, error.</p>

Martin Phelan died December 10, 1880. He had boarded ■and roomed in the house with the respondent from 1869 to the fall of 1875, and then from some time in May, 1877, to the time of his death, except temporary absences. On September 15, 1870, a farm of sixty-seven acres was sold on foreclosure sale against the respondent, and bid in by Phelan for $471, which he then paid.

. Action to recover the purchase price of lumber alleged to have been sold and delivered to the defendant. The plaintiff resided at Monroe and the defendant at Darlington, Wisconsin.

This action was commenced July 23,1880, to foreclose two mortgages upon the same land, executed by defendants to, plaintiff, each given to secure the payment of their promis-, sory note to plaintiff. The first of these notes is dated November 22, 1875, is for $235, with ten per cent, interest, payable annually, and is made due, by its terms, five years, after December 1, 1875. Payment of interest to January 29, 1878, is indorsed on this note.

The case is thus stated by Mr. Justice Taylor: “ This is an action to foreclose a mortgage upon certain real estate. The material facts are as follows: On the 27th day of October, 1869, Michael Elynn executed and delivered his-note for $100, payable one year after date, with ten per cent, interest, to the order of William. Walker, and to secure the payment of said note he executed and delivered a mortgage to said Walker, mortgaging the lands in question.

Action of trespass quare clausum. The defendants alleged, among other things, that the premises described in the complaint were a public highway. Other facts are stated in the opinion. There was a verdict for the defendants, and from the judgment entered thereon the plaintiff appealed.

The case is thus stated by Mr. Justice Cassoday: “Three causes of action are alleged in the complaint: (1) One for falsely, maliciously, and without any reasonable or probable cause whatever, making a complaint and information on oath to a justice of the peace in Illinois, whereupon, and according to the prayer of the defendant, a warrant was issued by the justice and the plaintiff arrested thereon for robbery, November 21, 1877, and taken before-the justice and there…

<p>Sale of Chattels — Fraud—Evidence.</p> <p>1. Knowledge and concealment by the vendor of the fact that a horse is blind may amount to a positive fraud which will avoid a sale, even though there was no express warranty; and where the vendor lias denied that lie knew of the blindness, evidence of what was said to him on that subject by a third person before the sale is admissible as tending to show such knowledge.</p> <p>2. In such a case, the error of rejecting the testimony of one who heard the conversation between such third person and the vendor is not cured by the fact that such third person subsequently testifies that he does not think he told the vendor that the horse was blind.</p>

Court for Crawford Countjn This action is to recover the amount due the plaintiff on a certain joint and several promissory note for $500, and ten per cent, interest, made by the defendant and one J. Burger to. the plaintiff or bearer, dated March 17, 1876, and due eight months after date. Payments made by Burger at different times, and of different sums, amounting in all to about $250, are indorsed thereon.

This is a motion by the relator to .dismiss the appeal. Held: to wit, July 21, 1883, together with the poll-list giving the names of the persons who voted at such meeting. A certified statement, under the hands of the inspectors of such-election, giving the resolutions passed thereat, and the action taken and had at the meeting, was also duly filed and recorded in the clerk’s office.

Action upon a policy of insurance against fire alleged to have been renewed on May 19, 1880, and continued in full force for tbe term of one year from that date. The loss occurred on May 26, 1880.

Action upon a policy issued by the defendant company to the plaintiff, insuring him for one year from January 18, 1881, against loss or damage by fire or lightning, to the amount of $1,000, on his stock of goods in a certain store therein described. The insured stock was destroyed by fire, July 19, 1881.

The case is thus stated by Mr. Justice Taylor: “ This action was brought by the plaintiff against the railway company for a balance claimed to be due to him for work and labor performed for said company. The defense set up was payment in full. The only controversy on the trial was whether the defendant was entitled to a credit of $46.75 which it had paid to one Schierl in a garnishee suit against the company in favor of said Schierl.

Replevin for a quantity of lumber delivered under a contract for the sale thereof to the defendant. The case is sufficiently stated in the opinion. The appeal is from a judgment in favor of the plaintiff.

. The action is to recover for personal injuries to the plaintiff, alleged to have been caused by the negligence of the defendant company. The circuit court overruled a general demurrer to the complaint, and this appeal is by the defendant from the order overruling the demurrer.

The case is thus stated by Mr. Justice Taylor : “This is an action of ejectment, brought to recover certain lands which the defendants claim to own by virtue of certain tax deeds issued to them by Marathon county.

Action to recover damages for the destruction by fire of a quantity of lumber belonging to the plaintiff, and which had been piled at or near one of the stations on the defendant’s railroad.

This was an action of ejectment commenced in Marathon county by personal service of the summons, on February 16, 1881. By stipulation the venue was changed, October 18, 1881, to Portage county, and on April 12, 1882, the venue' was again changed to Waupaca county, where the action was tried at the May term, 1882, by the court, a jury having been waived. The action was brought by the original owner of the premises in question against one GMlmore alone.

The complaint after alleging that the plaintiff is tbe owner in fee simple of certain described lots in the city of Stevens Point, and has been the said owner and in the actual possession thereof for more than one year immediately preceding the commencement of this action, proceeds as follows: “ That for more than twenty years last past the waters of the Wisconsin river at certain stages usually occurring every year have, unless prevented by artificial means, set back up a.…

This is an action to recover damages for personal injuries alleged to have been caused by a defective highway in the defendant town. At the place where the injuries complained of were inflicted, and for some distance in either direction, the highway in question had been cleared nearly or quite the whole width thereof. Through the center of this cleared strip a track had been graded twenty-five or thirty feet in width, and was made suitable and safe for travel.

The case is thus stated by Mr. Justice Tatlor: “The plaintiff brought this action to recover damages from the defendants for unlawfully entering upon the plaintiff’s land and unlawfully cutting and carrying .away a large quantity of pine timber, then and there growing thereon, and converting the same to their own use.

On September 25, 1878, the defendant JVeeves sold some pine logs and lands to the plaintiff by a written contract. This controversy does not involve the logs. The lands were held by him under certificates issued by the commissioners of public lands in 1869, calling for the payment of $37 on each forty acres, besides annual interest, and maturing on January 1, 1879.

The plaintiff and the defendant Ghafee are the owners respectively of two adjoining lots in the city of Stevens Point. Pursuant to an agreement between them they erected, at their joint expense, a party wall twelve inches thick on the line between their lots, one half of which was upon the lot of each. The wall was so erected to an agreed height, and under the same agreement Ghafee built it four feet higher.

Action to recover a balanc'e of $1,410.52 alleged to be due upon an oral contract for the manufacture of laths and pickets. The complaint states that the plaintiff agreed to run a portion of the defendant’s saw-mill during the season of 1881, and the defendant agreed to pay him for such service, forty-five cents per thousand for the laths and pickets so manufactured by him.

On November 15,1881; tbe plaintiff presented to the county board of the defendant county a duly verified claim, as follows ; Menohonie, Wis. November 15, 1881. Dunn County, To S. B. FRENCH, Dr.- March 1, 1881.

The action is to recover for personal injuries alleged to have been received by the plaintiff through the negligence of the defendant corporations, while the plaintiff was in their service as a brakeman, and in the discharge of his duty as such. The defendant The Wisconsin c& Minnesota Railroad Company .interposed a general demurrer to the complaint, and takes this appeal from an order overruling the same.

Croix County. The action is for the conversion of a quantity of pine logs out by the defendant under contract with the plaintiff. The facts are sufficiently stated in the opinion. The defendant appealed from a judgment upon a verdict directed for the plaintiff. 1. The defendant had a legal right to purchase any outstanding title or lien and to protect himself from an action for waste by the holder of the tax liens.

The case is thus stated by Mr. Justice Cassoday: “ This is an action of ejectment, brought by the original owner against the tax-title claimant.

The plaintiff being the owner of a judgment against the defendant, The Eau Pleine Lumber Company, upon which •there remained unpaid about $1,000, summoned II. D. Mc-Culloch as garnishee of said defendant. The garnishee answered, alleging that^ he was in no way indebted or under liability to the defendant and had no property belonging to it in his possession or under his control.

APPEALS from the Circuit Court for Portage County. The case is'thus stated by Mr. Justice Cassodat : “ On November 22, 1875, Ebenezer Whitney, being the owner of several hundred acres of pine-timbered land in Marathon county, agreed in writing to sell and convey the same to his brother, George Whitney, and the plaintiff Iloile, then residing in Dixon, Illinois, for $11,000; and thereupon gave to them a bond for a deed, and they paid to him $3,000 of the purchase price within…

The complaint alleges that the defendants wrongfully entered upon the lands of the plaintiff situated in the town of Warren, Waushara county, described as follows: The N. E.J of the S. W. J of sec. 11, town 18, range 12, and there committed trespass by digging a ditch on said land and destroying cranberry vines, to his damage $200.

The information in this case was filed in the circuit court for Racine county, and charged that on the 14th day of April, 1882, at said county, the defendant, Hartley Clifford, did “wilfully, feloniously, and of his malice aforethought kill and murder William R. Pugh, against the peace and dignity of the state of Wisconsin.” Upon the application of the defendant, on the ground of the prejudice of the judge, the venue was changed to Eoclc county, and the trial was there had.

The case is thus stated by Mr. Justice Cassoday: “The information contained two counts.

Action to recover one half of the amount due upon two several promissory notes for $500 each, made by the defendant and one Chittenden on the 18th of May, 1874.

Action to recover damages for the breach of an oral contract to renew a policy of insurance against fire. It appears that policies had been issued by the defendant company upon the dwelling-house of the plaintiff, and upon his store or saloon, both of which were to expire on January 15,1882. Prior to that date the plaintiff, by his agent Eobine W. King, requested one Blair, the agent of the company, to renew both policies.

The defendant company located and constructed its railway over and across the plaintiffs’ farm of 160 acres, in the town of Blooming Grove, Dane county, and instituted condemnation proceedings to obtain the right of way for the same through such farm. An award of damages having been made by commissioners duly appointed for that purpose, an appeal was taken therefrom to .the circuit court of Dane county.

The facts are stated in the opinion. At the close of the testimony, the court directed a verdict in favor of the defendant, and from the judgment entered thereon, dismissing •the complaint, the plaintiff appealed. contended, inter alia, that the plaintiff and the conductor were not co-employees in a -common service. PTo service is “ common ” which does not admit of common participation.

The complaint alleges the incorporation of the defendant company, and that the plaintiff resided at Ablemans in Sauk county on the line of the defendant’s railway, and was engaged in the business of buying and shipping stock to the Chicago market for sale; that on or about October 13,1882, the plaintiff being fully apprised as to the state of the market at Chicago, bought three car-loads of hogs thérefor, and notified the station agent of the defendant at Able-mans, 'who…

The facts in this case are substantially the same as in the case of Richardson v. C. & N. W. R'y Co., ante, p. 534, except as to the allegation of the complaint in respect to the delay, which is set forth in the opinion. The stock was to be shipped from Lavalle and Reedsburg to Chicago.

uk, County. The case is thus stated by Mr. Justice Cassoday: “ This was an action of replevin originally brought in justice’s court against the respondents and one Sprecher, to recover possession of a cow taken from the plaintiff by the defendant Kindsohi, as town treasurer, on a tax warrant issued by Sprecher, as town clerk, prior to the commencement of the action. The cow had been sold on the tax warrant to the defendant Kldbundi.

This action was commenced June 4, 1879, to recover the value of 1,000,000 feet of pine saw-logs, alleged in the complaint to have been unlawfully cut by the defendant between December 1, 1878, and May 1, 1879, upon certain lands owned by the plaintiff in fee simple, which said logs were hauled away by the defendant and converted to its own use.

The case is thus stated by Mr. Justice TayloR: “The plaintiff had recovered judgment against the defendant Chapman for the sum of $837.93. Execution, had been duly issued on said judgment, and had not been returned when proceedings against the appellant, Hasey, were commenced under sec, 2753, E. S. 1878.

The substance of the complaint is stated in the opinion. The defendants, Comstock and Lincoln County, answered separately. At the trial the defendant Comstock objected to the introduction of any evidence under the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The objection was sustained, and from the judgment dismissing the complaint the plaintiffs appealed. They argued, among other things: 1.

Ejectment. The complaint is in the usual form. The answer admits the defendant’s possession, and denies all allegations of the complaint.

The facts sufficiently appear from the opinion. There was a verdict for the plaintiff for $57.04, and from the judgment entered thereon the defendant appealed.

Ejectment for land alleged to belong to the estate of plaintiff’s intestate. The complaint is in the usual form. The defendant answered a general denial. The cause was called for trial in its regular order on the calendar of the circuit court.

The case is thus stated by Mr. Justice Taylob: “ This action was brought for the purpose of canceling a deed of conveyance of real estate made by A. W. Lawrence and his wife, Emily J. Lawrence, to Henry Reynolds, and to-compel the said Lawrence and wife to convey the same to-the plaintiff.

The following statement of the case is substantially that made by Mr. Justice Cassoday, prefatofy to the opinion: In January, 1851, one Levi Blossom, being then the owner of all the lands in question, granted to a road company the right of way through and over any.lands owned by him in section 35, township 21 north, range IT-east (now in the: city of Appleton), “ for the purpose of building a plank or turnpike road .... not exceeding four rods wide, and for no other purpose.

APPEAL fronj the Circuit Court for Ashland County. Attachment. The affidavit was made November 22,1882.

October 21, 1881, the plaintiff recovered judgment in the municipal court of Chippewa county against one William Ferguson. May 13, 1882, execution in due form was issued on such judgment by the municipal judge, and placed in the hands of a constable for collection.

The appeal is from an order sustaining a traverse to an amended affidavit upon which a writ of attachment had been issued. The original affidavit assigned as grounds for the attachment that the defendant had assigned, conveyed, disposed of, or concealed his property, or some part of it, or was about to do so, with intent to defraud his creditors. This affidavit was duly traversed by the defendant.

The complaint states three causes of action. The substance of the first will appear from the opinion. The second -and third were based upon accounts for services rendered by the plaintiff to the defendant at the instance and request of the latter.

<p> Change of venue. </p> <p>Under sec. 2624, R. S. (which provides for a change of the place of trial upon motion of the defendant made at the first term at which the action shall be noticed for trial), it is not essential that the action should he actually noticed for tidal, as a condition of the right or power of the court to change the place of trial. Nor need the motion for such change be made at the first term at which the action could be noticed for trial.</p>

<p>CONTRACT: Settlement. (1) When settlement may be avoided. (2) Evidence: contract of settlement construed.</p> <p>1. A party to a contract of settlement of a controversy cannot avoid it by alleging that he had a mistaken conception of its effect, without showing that he was induced to agree to it by some act of the other party which would amount to a fraud upon his rights.</p> <p>3. Upon the evidence in this case (too voluminous to he here stated) it is held that the referee and the court below erred in their construction of a contract of settlement, and that the plaintiffs had been paid all they were- entitled to under such contract.</p>

The opinion states the substance of the complaint, and of the evidence given on the trial in the circuit court. There was a verdict for the plaintiffs, and from the judgment entered thereon the defendant appealed.

The case is thus stated by Mr. Justice Cassoday: “At a meeting of the board of supervisors of the county, held in November, 1880, the plaintiff presented an itemized account for services rendered by him as constable in sundry criminal cases. Among the charges made were a large num-: ber of $1.50 each, for attending upon justices’ or police courts with prisoners.

The facts are stated in the opinion. At the close of the testimony the courl! directed a verdict for the defendant, and from the judgment entered thereon the plaintiff appealed. to the point that as the plaintiff was at most a licensee, the company owed to him no specific duty of watchfulness and care, cited, besides the cases cited in the opinion: MeAlpinv. Powell, 10 N. Y., 126; Gillespie v. McGowan, 100 Pa. St., 144; Morgan's. Pa. R. R. Go., 7 Fed.

The appeal is from an order striking out a portion of the answer as irrelevant and redundant. The action is to recover the amount alleged to be due on a promissory note for $313.10, given March 23, 1882, by the defendant to the firm of Bois, Pay & Conkey, of Chicago, Illinois, payable July 15, 1882. It is alleged in the complaint that such note was transferred, before due and for a valuable consideration, to the plaintiff, and that he is the lawful owner and holder thereof.

The defendant appealed from an order granting a new trial. The facts are stated in the opinion. To the point that it is essential to the rights of a married woman that she should be permitted to testify either for or against her husband, whenever the holding, management, using, or disposition of her separate estate is involved, counsel for the appellant cited -. Sage v. McLaughlin, 34 Wis., 550; MoVey v. G. B. Mills v. 17.